"Any person who shall publicly use or utter any indecent or obscene language shall
be guilty of a misdemeanor of the second degree...."

After the arrest, appellant was searched and marihuana was found in his possession.
Appellant was then charged with using indecent or obscene language, resisting arrest, and
possession of marihuana. Prior to trial, he moved to dismiss the information on the ground
that on its face Florida Stat. § 847.05 violates the First and Fourteenth Amendments and
therefore the arrest pursuant to § 847.05 was unlawful and the ensuing search and seizure
of the marihuana invalid. The motion was denied. At trial by jury, the marihuana was
admitted in evidence and appellant was convicted solely on the charge of possession of
marihuana. The conviction was appealed to the Florida Supreme Court pursuant to Art. V, §
3 (b)(1) of the Florida Constitution, which directs the Florida Supreme Court to
"hear appeals... from orders of trial courts... passing on the validity of a state
statute...." The Florida Supreme Court upheld the constitutionality of § 847.05,
finding that the statutory language itself was "sufficient to convey to a person of
common understanding its prohibition." 293 So. 2d 33, 34. In view of that holding,
the Florida Supreme Court found it unnecessary to decide whether the marihuana conviction
could stand if § 847.05 were unconstitutional and the initial arrest therefore unlawful.

Section 847.05 punishes only spoken words and, as construed by the Florida Supreme
Court, is facially unconstitutional because not limited in application "to punish
only unprotected speech" but is "susceptible of application to protected
expression." Gooding v. Wilson, 405 U.S.: 518, 522 (1972). See also Lewis v. City of
New Orleans, 415 U.S. 130, 134 (1974); Cohen v. California, 403 U.S. 15, 20 (1971). In
that circumstance, it is irrelevant that the statute might constitutionally reach
appellant's conduct, for "' a statute may be neither vague, overbroad, nor otherwise
invalid as applied to the conduct charged against a particular defendant, he is permitted
to raise its vagueness or unconstitutional overbreadth as applied to others. And if the
law is found deficient in one of these respects, it may not be applied to him either,
until and unless a satisfactory limiting construction is placed on the statute. The
statute, in effect, is stricken down on its face...."' Gooding v. Wilson, supra, at
521.

Gooding obviously compels reversal of the judgement of the Florida Supreme Court. The
Court, however, dismisses this appeal for want of a properly presented federal question.
But a dismissal on that ground would be appropriate only if the federal claim had not been
raised in a proper and timely manner in the state courts. See, e.g., Bailey v. Anderson,
326 U.S. 203, 206-207 (1945); Street v. New York, 394 U.S. 576, 581-585 (1969). That
cannot possibly be said of this case. The unconstitutionality of § 847.05 was the basic
claim asserted by appellant and he urged it at every level in the state proceedings. And
even were there doubt of this, and there can be none on this record, our jurisdiction
still obtains since the Florida Supreme Court's sole ground of decision was based upon
resolution of the federal question. "There can be no question as to the proper
presentation of a federal claim when the highest state court passes on it." Raley v.
Ohio, 360 U.S. 423, 436 (1959).

Certainly it cannot be said that there is lack of a properly presented federal question
because appellant was not convicted for violating § 847.05 but on the marihuana charge.
His claim is that the marihuana seized from him and admitted in evidence against him was
"fruit of the poisonous tree" because his initial arrest was pursuant to the
unconstitutional § 847.05. It may be that on remand his "fruits" claim will be
rejected and the marihuana conviction reinstated. But the Florida Supreme Court did not
speak to that question in light of its determination, based on holding § 847.05
constitutional, that the initial arrest was valid. Appellant has properly presented the
federal question decided by the Florida Supreme Court and our plain duty is to reverse
that Court and remand for further proceedings not inconsistent with this opinion.